PEOPLE v. GORDON

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Dwayne GORDON, Defendant-Appellant.

Decided: October 19, 2004

NARDELLI, J.P., SAXE, SULLIVAN, ELLERIN, SWEENY, JJ. Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Patrick J. Hynes of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 7, 2002, as amended August 27, 2002, convicting defendant, after a jury trial, of attempted assault in the first degree, assault in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of 10 years, unanimously affirmed.

After a proper inquiry, the court properly exercised its discretion in denying defendant's request to replace a sworn juror who, according to another juror, had “joked” immediately after jury selection that the jury could reach a guilty verdict without hearing any evidence.   The court properly determined that the juror, who gave unequivocal assurances of his impartiality, was fit to continue serving and to render a fair verdict (see CPL 270.35[1];  People v. Buford, 69 N.Y.2d 290, 298-299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ).   Moreover, even if the juror who allegedly made the remark “was less than completely forthright, there was no misconduct that affected a substantial right of defendant [citation omitted]” (People v. Cabrera, 305 A.D.2d 263, 761 N.Y.S.2d 21 [2003], lv. denied 100 N.Y.2d 560, 763 N.Y.S.2d 817, 795 N.E.2d 43 [2003] ).